P. v. Hardin
Filed 2/27/13 P. v. Hardin CA2/7
California Rules of Court, rule 8.1115(a), prohibits courts
and parties from citing or relying on opinions not certified for publication or
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND
APPELLATE DISTRICT
DIVISION
SEVEN
THE PEOPLE,
Plaintiff and Respondent,
v.
LEON DEWAYNE HARDIN,
Defendant and Appellant.
B234206
(Los Angeles County
Super. Ct.
No. PA065806-02)
THE PEOPLE,
Plaintiff and Respondent,
v.
JOSE JOEL MORENO,
Defendant and Appellant,
B235155
(Los Angeles County
Super. Ct.
No. PA065806-01)
APPEALS
from judgments of the Superior Court
of
County, David B. Gelfound, Judge. Affirmed.
Marilyn
Drath, under appointment by the Court of Appeal, for Defendant and Appellant,
Leon Dewayne Hardin.
Kamala D.
Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General,
Lance E. Winters, Assistant Attorney General, Victoria B. Wilson and
Viet H. Nguyen, Deputy Attorneys General, for Plaintiff and Respondent.
Michael S.
Pedretti, for Defendant and Appellant, Jose Joel Moreno.
Kamala D.
Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General,
Lance E. Winters, Assistant Attorney General, Stephen D. Matthews and Zee
Rodriguez, Deputy Attorneys General, for Plaintiff and Respondent.
__________________________
Jose Joel
Moreno and Leon Dewayne Hardin appeal from the judgments entered after a jury
convicted both of them of attempted
carjacking and attempted robbery and Moreno
of assault with a deadly weapon (a knife).
We affirm.
FACTUAL AND PROCEDURAL BACKGROUND
1. The
Charges
Moreno
and Hardin were accused of attempting to steal Braulio Trejo’s car after Trejo
had helped them try to repair their truck’s flat tire. Both men were charged by amended information
with attempted carjacking (Pen. Code, §§ 215, subd. (a), 664)
degree robbery (§§ 211, 664) (count 2). Moreno
was also charged with assault with a deadly weapon (§ 245, subd. (a)(1)) (count
3), and it was specially alleged he had personally used a deadly or dangerous
weapon within the meaning of section 12022, subdivision (b)(2), in committing
counts 1 and 2.
As to all
counts it was further specially alleged Moreno
had suffered two prior serious or violent felony convictions within the meaning
of the “Three
(§§ 667, subds.(b)-(i), 1170.12, subds. (a)-(d)) and one prior serious
felony conviction within the meaning of section 667, subdivision (a)(1), and
had served several separate prison terms for felonies (§ 667.5, subd.
(b)). With respect to Hardin, it was
specially alleged as to counts 1 and 2 he had suffered two prior serious or violent
felony convictions within the meaning of the Three Strikes law and section 667,
subdivision (a)(1).
Moreno
and Hardin pleaded not guilty and denied the special allegations.
2. The Trial Court’s Ruling Evidence the Truck Was Stolen Was Admissible
On the first day of trial Moreno
moved to exclude evidence the truck they had been driving was stolen, arguing
it was unduly prejudicial because there was no evidence Moreno
or Hardin had stolen it or knew it was stolen.
The People argued the evidence was relevant because it provided a motive
for attempting to steal Trejo’s car—to get away from the stolen truck—and to
forestall the jury from speculating why they would leave their own vehicle
behind when it could so easily link them to the crime. The court ruled the evidence was admissible
subject to a limiting instruction there was no evidence Moreno
or Hardin had stolen the truck.
3. Summary
of the Evidence Presented at Trial
Trejo testified he was at the
home of his sister Enriqueta Trejo with several family members on December 25, 2009 when he went to
retrieve something from his car around 8:00 p.m. As he walked to the car, he saw Moreno
sitting in the driver’s seat and Hardin sitting in the passenger seat of a
truck.
tire. Trejo responded his spare would be
too small, but agreed to ask his family whether anyone had a suitable spare
tire. No one else was willing to help.
Enriqueta
Trejo testified she took trash outside around 8:00 p.m. and saw Moreno and Hardin
sitting in the truck. Moreno asked her
if she had a spare tire.
name="_ftnref3" title="">[3] She eventually agreed to give them one in
exchange for $100, which she would return when Moreno returned the tire. Braulio Trejo was not present during this
exchange.
Hardin
subsequently came to the house and asked if Trejo had any tools. Trejo agreed to help change the tire. When this tire did not fit, Hardin asked if
Trejo could give him and Moreno a ride.
Trejo agreed. As Trejo sat in his
car, Hardin got in the passenger seat.
Moreno came to the driver’s side door and told Trejo to get out. When Trejo hesitated, Moreno repeated the
command several times and put a knife to Trejo’s neck through the open
window. Trejo got out but immediately
punched Moreno in the face. The two men
fought. Moreno swung the knife at Trejo
but dropped it at some point in the fight.
After a few minutes Trejo’s family members came outside to help. Hardin fled, but Trejo and others restrained
Moreno until the police arrived. Hardin
was apprehended shortly thereafter.
The knife
was recovered by the police from the roof of Trejo’s car where one of his
sisters had placed it. No fingerprints
were found on the knife.
Moreno and Hardin did not
testify or present any other witnesses in their defense.
4. The
Jury’s Verdict and Sentencing
The jury found Moreno guilty of
attempted carjacking, attempted robbery and assault with a deadly weapon and
found true the special use-of-a-deadly-weapon allegations. In a bifurcated proceeding the trial court found
true the prior conviction allegations and sentenced Moreno to an aggregate
state prison term of 31 years to life, consisting of a Three Strikes sentence
of 25 years to life for attempted carjacking plus five years for the section
667, subdivision (a)(1), enhancement, plus one year for the weapon-use
enhancement. Sentence on counts two and
three was stayed pursuant to section 654.
The jury
also found Hardin guilty of attempted
carjacking and attempted robbery.
After a bifurcated proceeding in which the court found true Hardin had
previously been convicted based on a negotiated plea agreement of assault with
a semiautomatic weapon (§ 245, subd. (b)) and making a criminal threat
(§ 422), Hardin moved to dismiss the strike allegations in the interests
of justice. (§ 1385;
497.) In support of the motion Hardin
argued he was married, owned his own home, was training to be a pastor and had
been steadily employed for more than 15 years at the time of the incident;
the two prior strike convictions in 2006 arose after he tried to defend himself
when a group of gang members threatened him; his conviction for infliction of
corporal injury upon a spouse or cohabitant (§ 273.5, subd. (a)) in 2007 was in
part due to an over-prescription of
surgery; the fact he had never served time in state prison demonstrated his
prior convictions were not serious offenses; and his role in the attempted
carjacking and attempted robbery was essentially passive and minor.
In
declining to dismiss the strikes, the court found Hardin had an extensive adult
criminal record beginning in 1990: “1990
resisting [arrest], obviously it is a misdemeanor. He picks up two of those in 1990. 1994 he picks up a gun charge as a
misdemeanor. In ’97 he picked up a
[battery] and ultimately pleads to a cruelty to animals charge. So we have consistent contact from 1990 to
1997. Then his degree of seriousness
increases. 2006, strike prior where he
allegedly made threats armed with a gun.
It’s very serious. He has a
handgun. It’s a violent crime. He’s given probation . . . a huge
break. And despite that break what does
he do while on probation? He picks up a
[section] 273.5 . . . where in that case he allegedly beat up his
girlfriend. Again, he’s given [execution
of sentence suspended]. . . .
He’s given another huge break.
And in 2009 he picks up another battery charge. Despite that then picks up our case.â€
The court
also reviewed the circumstances of the current offense, noting it was a
“violent, violent crime†in which a knife was used and the victim could have
been killed. Based on its conclusion
Hardin was “a person who’s been given chance after chance with the legal
system,†the court found “it would be an abuse of discretion to strike a strike
in this case.†The court sentenced
Hardin to an aggregate state prison term of 30 years to life, consisting of a
Three Strikes sentence of 25 years to life for attempted carjacking plus five
years for the section 667, subdivision (a)(1), enhancement.
section 654.
CONTENTIONS
Moreno contends the evidence the
truck had been stolen was an unduly prejudicial uncharged act of misconduct and
there was insufficient evidence he had personally used a knife. Hardin contends he was denied effective
assistance of counsel because his trial attorney failed to object to admission
of evidence the truck was stolen, there was insufficient evidence he had aided
and abetted the crimes of attempted carjacking and attempted robbery, and the
court abused its discretion in failing to dismiss his prior convictions in the
interest of justice.
DISCUSSION
1. The Trial Court Did Not Abuse Its Discretion in Admitting Evidence the
Truck Was Stolen
a. Governing law
Evidence is
admissible only if it is relevant.
(Evid. Code, § 350.) All
relevant evidence is admissible except as otherwise provided by a statutory or
constitutional exclusionary rule. (See
Cal. Const., art. I, § 28, subd. (f)(2); Evid. Code, § 351.) Relevant
evidence is defined as evidence “having any tendency in reason to prove or
disprove any disputed fact that is of consequence to the determination of the
action.†(Evid. Code, § 210.) The
general test of relevance “‘is whether the evidence tends “logically,
naturally, and by reasonable inference†to establish material facts such as
identity, intent, or motive.’†(People
v. Bivert (2011) 52 Cal.4th 96, 116.)
However, if evidence leads only to speculative inferences, it is
irrelevant. (People v. Morrison
(2004) 34 Cal.4th 698, 711.)
Even if relevant, evidence may be
excluded in the trial court’s discretion if its probative value is
substantially outweighed by the probability that its admission will (a)
necessitate undue consumption of time or (b) create substantial danger of undue
prejudice,
of confusing the issues, or of misleading the jury. (Evid. Code, § 352; People v. Lee (2011) 51 Cal.4th 620, 643.) A trial court has broad discretion in
determining whether evidence is relevant and whether Evidence Code section 352 precludes its admission. (People
v. Mills (2010) 48 Cal.4th 158, 195; People
v. Williams (2008) 43 Cal.4th 584, 634.) We review for abuse of discretion a trial
court’s rulings on the admissibility of evidence, including those turning on
the relevance or probative value of the evidence in question. (Lee, at p. 643; People v. Hamilton
(2009) 45 Cal.4th 863, 930.) Nevertheless,
even if the trial court abused its discretion in admitting irrelevant evidence,
reversal is not warranted unless the evidence was prejudicial. “[S]tate law error in admitting evidence is
subject to the traditional Watson test:
The reviewing court must ask whether it is reasonably probable the
verdict would have been more favorable to the defendant absent the error.†(People v. Partida (2005) 37 Cal.4th
428, 439.) Federal due process is
offended only if admission of the irrelevant
b. The trial court did not abuse its discretion in finding the evidence
relevant and not unduly prejudicial
Moreno and
Hardin contend evidence the truck had been stolen was an unduly prejudicial
uncharged act of misconduct from which the jury might infer they were more
likely guilty of the charged crimes.
(See People v. Ewoldt (1994) 7 Cal.4th 380, 393 [Evid. Code,
§ 1101 prohibits admission of evidence of person’s character, including
specific instances of uncharged misconduct, to prove conduct of person on
specific occasion; evidence may be admitted if relevant to establish identity,
intent and motive].) They argue any
relevance the truck was stolen had on the issue of motive was weak because they
could have called a taxi (Hardin had $210 when he was arrested), taken a bus or
simply accepted the ride Trejo was willing to give them to distance themselves
from the stolen vehicle.
As a
threshold matter, Moreno and Hardin’s argument the evidence was improperly
admitted under Evidence Code section 1101 has been forfeited: Moreno objected to the admission of the
evidence as irrelevant and prejudicial under Evidence Code section 352, not
under Evidence Code section 1101. (See People
v. Williams, supra, 43 Cal.4th at
p. 620 [“‘“questions relating to the admissibility of evidence will not be
reviewed on appeal in the absence of a specific and timely objection in the
trial court on the ground sought to be urged on appealâ€â€™â€]; see generally Evid.
Code, § 353, subd. (a) [“[a] verdict or finding shall not be set
aside, nor shall the judgment or decision based thereon be reversed, by reason
of the erroneous admission of evidence unless . . [¶]
. . . [t]here appears of record an objection to or a motion to
exclude or to strike the evidence that was timely made and so stated as to make
clear the specific ground of the objection or motionâ€].) Moreover, and perhaps the reason counsel did
not advance the argument in the trial court, the People were not seeking to
introduce, and there was no evidence of, an uncharged act of misconduct. As discussed, there was no evidence Hardin or
Moreno had stolen the truck, and the jury was so instructed. In addition, there was no direct or
been stolen. (Cf. People v. Garelick (2008) 161 Cal.App.4th 1107, 1115 [“truth
of the prior uncharged
act and defendant’s connection
to it are preliminary factual issues which must be decided before the prior misconduct can be deemed admissible;
if the prior and defendant’s connection to it are not established by a
of the evidence,
the prior is irrelevant to prove the Evidence Code [§] 1101(b) fact
for which it is being offeredâ€].)
Although
Moreno and Hardin have forfeited their argument based on Evidence Code section
1101, subdivision (b), we nonetheless review whether the trial court abused its
discretion in admitting the evidence under Evidence Code sections 350 and 352. Without question, the absence of any proof
Moreno and Hardin knew the truck was stolen undermines the People’s argument at
trial the evidence provided a motive for attempting to steal Trejo’s car—to get
away from the stolen truck. Nevertheless,
the People properly asserted the evidence was relevant to forestall the jury
from speculating why they would leave behind their own vehicle when it could so
easily link them to the crime. To be
sure, the court perhaps could have limited the evidence to a statement the
truck was not registered to Moreno or Hardin, or otherwise linked to them, but
under the circumstances it was not unduly prejudicial to admit evidence the
truck was stolen: “The prejudice which
exclusion of evidence under Evidence Code section 352 is designed to avoid is
not the prejudice or damage to a defense that naturally flows from relevant,
highly probative evidence. ‘[A]ll
evidence which tends to prove guilt is prejudicial or damaging to the
defendant’s case. The stronger the
evidence, the more it is “prejudicial.â€
The “prejudice†referred to in Evidence Code section 352 applies to
evidence which uniquely tends to evoke an emotional bias
against the defendant as an individual and which has very little effect on the
issues.’†(People v. Karis (1988) 46 Cal.3d 612, 638; see People v. Alexander (2010) 49 Cal.4th 846, 905 [evidence need
not be excluded under Evid. Code, § 352 “unless it ‘poses an intolerable “‘risk
to the fairness of the proceedings or the reliability of the
outcome’â€â€™â€].) Here, the prejudice to
Moreno and Hardin resulted not from some policy concern or danger the evidence
could be misconstrued or might evoke an emotional bias
against them unrelated to the issues, but from its relevance to the reason
Moreno and Hardin might be willing to commit the charged offenses.
Even if the
trial court erred in admitting the evidence, it was harmless. Trejo’s testimony was strong evidence Moreno
and Hardin had committed the crimes.
Moreno and Hardin attempted to discredit Trejo by identifying
contradictions in his testimony as well as conflicts between his testimony and
his family member’s testimony, but the jury clearly found Trejo credible. Whether Moreno and Hardin were in a stolen
truck prior to the commission of the crimes has no bearing on Trejo’s
credibility. It is not reasonably
probable the verdict would have been more favorable to the defendant absent
admission of the evidence. (See People
v. Partida, supra, 37 Cal.4th
428, 439.)
2.
Substantial Evidence
a. Standard
of review
When
considering challenges to the sufficiency
of the evidence, we “review
the whole record to determine whether any rational trier of fact could
have found the essential elements of the crime or special circumstances beyond
a reasonable doubt. [Citation.] The
record must disclose substantial evidence to support the verdict—i.e., evidence
that is reasonable,
value—such that a reasonable
trier of fact could find the defendant guilty beyond a reasonable doubt.
[Citation.] In applying this
test, we review the evidence in the light most favorable to the prosecution and
presume in support of the judgment the existence of every fact the jury could
reasonably have deduced from the evidence.
[Citation.] ‘Conflicts and even
testimony [that] is subject to justifiable suspicion do not justify the
reversal of a judgment, for it is the exclusive province of the trial judge or
jury to determine the credibility of a witness and the truth or falsity of the
facts upon which a determination depends.
[Citation.] We resolve neither
credibility issues nor evidentiary conflicts; we look for substantial
evidence. [Citation.]’ [Citation.]
A reversal for insufficient evidence ‘is unwarranted unless it appears
“that upon no hypothesis whatever is there sufficient substantial evidence to
supportâ€â€™ the jury’s verdict.†(People
v. Zamudio (2008) 43 Cal.4th 327, 357.)
b. There
was sufficient evidence Moreno used a knife
Moreno
contends there was insufficient evidence he used a knife during the altercation
because Trejo’s “testimony regarding the existence of the knife was erratic and
illogical.†For example, Moreno argues,
Trejo testified Moreno hit him with the same fist that was carrying the knife,
“a very difficult task to pull offâ€; even though Trejo was being assaulted with
a knife, he never yelled to his family or tried to run away; and, although they
allegedly fought for an extended period of time, Trejo was never cut or even
nicked by the knife.
Even if
some portions of Trejo’s testimony could properly be described as erratic or
illogical,
impossible or inherently improbable.â€
Thus, this testimony alone is sufficient to support Moreno’s
conviction and the jury’s true findings he had personally used a knife during
the crimes. (People v. Elliott
(2012) 53 Cal.4th 535, 585.)
Moreover, the jury was presented with more than just Trejo’s
testimony. A knife found at the scene
was introduced into evidence, and Enriqueta Trejo testified she saw the knife
near the rear tire of Trejo’s car.
c. There
was sufficient evidence Hardin aided and abetted the attempted carjacking and attempted robbery
“A person
aids and abets the commission of a crime when he or she, acting with
(1) knowledge of the unlawful purpose of the perpetrator; and (2) the
intent or purpose of committing, encouraging, or facilitating the commission of
the offense, (3) by act or advice aids, promotes, encourages or instigates, the
commission of the crime.†(People v.
Beeman (1984) 35 Cal.3d 547, 561.)
“‘“[T]he test is whether the accused in any way, directly or indirectly,
aided the perpetrator by acts or encouraged
him by words or gestures.â€â€™â€ (
402, 411, italics added.) Although mere
presence and failure to prevent a crime are insufficient to establish aiding
and abetting liability, presence at the scene is a relevant factor. (See id.
at p. 409.)
There was
sufficient evidence Hardin aided and abetted the crimes and was not, as he
contends, simply doing nothing because he was “between a rock and a hard
place,†not wanting to commit a crime but also not wanting to get in a fight
with Moreno. Trejo testified Moreno and
Hardin were whispering to each other outside his car just before the crimes
occurred. Moreover, after Moreno
initially put a knife to Trejo’s neck and told him to get out of the car,
Hardin said, “Yeah, that’s right. Get
out.†Then, when Moreno and Trejo were
fighting, Hardin told Moreno to hurry up because he was taking too long. Finally, Hardin tried to pull Trejo into the
car during the struggle between Moreno and Trejo.
Hardin
attempts to discount the significance of this evidence, pointing to other
testimony at trial. For example, Trejo
conceded he could not see Hardin’s hands and thus did not really know whether
Hardin was grabbing him, and Trejo’s brother-in-law testified he saw Hardin
sitting in the passenger seat with a beer in his hand. Hardin also argues, if he had intended to help
Moreno, he could have done a number of things including take Trejo’s car keys,
which were in the ignition while Trejo and Moreno were fighting.
All such
conflicts and inconsistencies in the testimony were for the jury to
resolve. (See People v. Zamudio, supra,
43 Cal.4th at p. 357.) The evidence in
the record was more than sufficient to sustain Hardin’s convictions for aiding
and abetting.
3. The
Trial Court Did Not Abuse Its Discretion in Sentencing Hardin to 30 Years
to Life Pursuant to the Three Strikes Law
law
Section
1385, subdivision (a), vests the court with discretion to dismiss a prior
conviction, including a qualifying strike conviction, “in furtherance of
justice.†(Romero,
supra, 13 Cal.4th at p.
530; People v. Williams (1998) 17 Cal.4th 148, 158.) “[I]n ruling whether to strike or vacate a
prior serious and/or violent felony conviction allegation or finding under the
Three Strikes law . . . or in reviewing such a ruling, the court . . . must
consider whether, in light of the nature and circumstances of his present
felonies and prior serious and/or violent felony convictions, and the
particulars of his background, character, and prospects, the defendant may be
deemed outside the [Three Strikes] scheme’s spirit, in whole or in part, and
hence should be treated as though he had not previously been convicted of one
or more serious and/or violent felonies.â€
(Williams, at p. 161.)
We review the trial court’s decision
not to dismiss a prior strike allegation under section 1385 for abuse of
discretion. (People
v. Carmony (2004) 33 Cal.4th 367, 376.) “[T]he three strikes law not only
establishes a sentencing norm, it carefully circumscribes the trial court’s
power to depart from this norm and requires the court to explicitly justify its
decision to do so. In doing so, the law
creates a strong presumption that any sentence that conforms to these
sentencing norms is both rational and proper.
[¶] . . . [¶] . . . ‘[I]t is not enough to show
that reasonable people might disagree about whether to strike one or more’
prior conviction allegations. . . . Because the circumstances must be
‘extraordinary . . . by which a career criminal can be deemed to fall
outside the spirit of the very scheme within which he squarely falls once he
commits a strike as part of a long and continuous criminal record, the
continuation of which the law was meant to attack’ [citation], the
circumstances where no reasonable people could disagree that the criminal falls
outside the spirit of the three strikes scheme must be even more extraordinary.†(Id. at p. 378.)
b. The
trial court did not abuse its discretion in refusing to dismiss a prior strike conviction
Citing People v. Benson (1998) 18 Cal.4th 24 (Benson) and People v. Burgos
(2004) 117 Cal.App.4th 1209 (Burgos),
Hardin contends the trial court abused its discretion in failing to dismiss one
of the strikes because the two strikes were so closely connected as to have
risen from a single act.
name="_ftnref7" title="">[7] Hardin’s reliance on these two decisions is
badly misplaced.
In
previously suffered two qualifying strike convictions, one of which was stayed
pursuant to section 654, both convictions are properly treated as strikes for
future sentencing purposes. (
discretion in such cases to strike one or more prior felony convictions under
section 1385 if the trial court properly concludes that the interests of
justice support such an action.†(
exercise of a trial court’s discretion under section 1385 necessarily relates
to the circumstances of a particular defendant’s current and past criminal
conduct, we need not and do not determine whether there are some circumstances
in which two prior felony convictions are so closely connected—for example,
when multiple convictions arise out of a single act by the defendant as
distinguished from multiple acts committed in an indivisible course of
conduct—that a trial court would abuse its discretion under section 1385 if it
failed to strike one of the priors.†(
In
trial court had abused its discretion in declining to strike one of defendant’s
prior strike convictions for robbery and carjacking. (Burgos,
supra, 117 Cal.App.4th at p.
1216.) The Burgos court read the Benson footnote to “strongly
indicate[] that where the two priors were so closely connected as to have
arisen from a single act, it would necessarily constitute an abuse of
discretion to refuse to strike one of the priors.†(Burgos, at p. 1215.) The court
emphasized, however, “not only did the two prior convictions arise from the
same act, but, unlike perhaps any other two crimes, there exists an express
statutory preclusion on sentencing for both offenses.†(Id. at
p. 1216 [citing § 215, subd. (c)].)
Appellate decisions since
categorically held one of two strikes arising from a single act must be
dismissed or whether that is simply one factor the trial court should consider
in exercising its discretion. (See,
e.g., People v. Scott (2009) 179
Cal.App.4th 920, 931 (Scott).) While finding Burgos itself not entirely clear on the point, these decisions have
rejected the proposition a trial court lacks discretion under similar
circumstances. In Scott, for example, the court held “the ‘same act’ circumstances
posed by robbery and carjacking cases provide a factor for a trial court to
consider, but do not mandate striking
a strike.†(Ibid.) This issue is now
pending in the Supreme Court. (
971, review granted Sept. 12, 2012, S203744.)
However the
Supreme Court resolves the question whether a trial court must dismiss one of
two strike convictions for carjacking and robbery, here Hardin’s pleas to the
charge of aggravated assault and making a criminal threat were not based on a
single act even if they were part of a continuous course of conduct and
properly subject to section 654’s limitation on multiple punishments—an issue
we need not decide. Hardin both
displayed a semiautomatic firearm as part of the assault and made a qualifying
verbal threat within the meaning of section 422. Under the holding of Benson, supra, 18 Cal.4th
24, the trial court necessarily had discretion to deny Hardin’s motion to
dismiss one of those strikes; and its decision to do so was well within
its discretion, particularly in light of Hardin’s extensive criminal
history. (See People v. Carmony, supra,
33 Cal.4th at p. 378 [in light of presumption sentence is rational and proper,
court abuses discretion in limited circumstances such as when court not aware
of discretion to dismiss or when court considers impermissible factors].)
Hardin’s
additional argument the court failed to take into consideration the passive
nature of his action in the current case fails for two reasons. First, as discussed, Hardin has misstated or
ignored relevant evidence of his actual role in facilitating the current crimes. Second, the trial court was not required to
expressly state every consideration supporting its decision. (See People
v. Carmony, supra,
33 Cal.4th at p. 378 [when record is silent, presumption trial court
applied the law is applicable].)
DISPOSITION
The judgments are affirmed.
PERLUSS,
P. J.
We
concur:
WOODS,
J.
ZELON,
J.
references are to the Penal Code unless otherwise indicated.
stipulation was read to the jury that the truck had been taken without the owner’s
permission while parked on a street in San Diego
County. Pursuant to the court’s pretrial ruling, the
jury was instructed there was no evidence Moreno or Hardin had stolen the
truck.
